Articles Posted in Blood Testing

The infrastructure spending bill now pending before the United States Senate contains a provision requiring that all manufacturers selling cars in the Unites States install technology that will preclude the vehicle from being operated by an intoxicated driver. This provision was sponsored by Michigan’s Rep. Debbie Dingell, D, among others.

According to the 2702-page bill, the Department of Transportation will be charged with the responsibility to determine the safety standards applicable to the technology and are required to do so within three years. Car manufacturers will then be given an additional two years to comply with these standards. However, if the DOT fails to finalize the rules within 10 years, the agency must report to the US Congress why they failed to comply.

There is little guidance in the bill relative to how the DOT should exercise their authority other than to say that whatever technology they settle on should “passively” and “accurately” monitor a driver’s performance and determine whether the driver is impaired.  Furthermore, the technology must “passively and accurately detect whether the blood alcohol concentration of the driver of a motor vehicle” is too high.

Michigan’s Super Drunk Driving law went into effect on October 31, 2010.  It created enhanced punitive and driver license sanctions for Michigan drunk drivers with a Bodily Alcohol Content (BAC) of .17 or above. It only applies to first offense drunk driving as penalties and driver license sanctions for second or subsequent offenses remain unchanged and more punitive than for super drunk driving. This is true even for repeat offenders with BACs at or above .17.

What are the Penalties for a High BAC Super Drunk Driving in Michigan?

Michigan drivers found or pleading guilty to a High BAC super drunk driving face an array of serious punishments and consequences, including potentially more time in jail and less time on the road.

According to science, breath alcohol tests in DUI cases can be as much as 230 percent higher than corresponding blood tests. Because blood transports consumed beverage alcohol from the stomach to the brain where it can reach sufficient levels to cause impairment, a person’s blood alcohol level is what really matters. Therefore, in the context of a DUI case, breath alcohol only relevant  to the extent that it accurately reflects blood alcohol content. This is true because breath alcohol does not have the capacity to cause intoxication.

To understand just how significant this fact is, consider a hypothetical case where a driver’s breath test comes back at .18. This would likely result in the driver being charged with an enhanced DUI, or what Michigan calls “super drunk driving,” a charge applicable to drivers with a BAC of .17 or above. While this breath test evidence might look bad for the driver, it is well within the realm of scientific possibility that this same driver has corresponding or simultaneous blood alcohol level of .063, or well below the legal limit of .08. Understanding why this is so, and why breath testing can be so pernicious, requires a basic understanding of alcohol metabolism.

Pharmacokinetics and the Absorption, Distribution and Elimination of Alcohol

In some drunk driving cases you will immediately know that charges are being filed. For example, there was a traffic stop, field sobriety tests and a preliminary breath test (PBT), an arrest, and a subsequent breath test at the police station. Then, when you leave the police station you’ll have all the documents reflecting that you’re being charged with DUI.

In other cases, it might not be so clear. Some confusion may arise when a blood sample was taken as opposed to a breath test. In most DUI cases in which a blood sample was obtained, no formal citation issued at the time of the arrest.  The same is true if you have one or more prior DUI offenses. Another reason you may not have received a ticket is you blow super-drunk at the roadside. In any of these cases you won’t leave the station with a ticket or any other document indicating you got a DUI, and you may wonder if you are actually being charged. This is because the police and prosecutor are waiting for the results of the blood sample to know which level, if any, of DUI crime they can charge. If you were involved in a case like this, you might be left wondering when you should hire an attorney.

How long will it take for me to find out whether charges will be filed?

Driving under the influence (DUI), or in Michigan Operating While Intoxicated (OWI), is usually charged using a breath test result. However, due to the recently discovered breath testing fraud, more often Michigan DUI cases are charged using a blood test result.  Breath test results are available immediately after the test is administered at the police station or jail. Blood sample results, however, can take weeks or months to be returned from the Michigan State Police (MSP) forensics lab. The prosecutor in a DUI case generally, but not always, waits for blood results to submit formal charges because if the result is over .08 then the case can be charged under Michigan’s Unlawful Blood Alcohol Level law.  And if the test result is above a .17, then it is considered a super-drunk driving.

What is the Process That My Blood Sample Goes Through?

If you have gone through a Michigan DUI arrest that involved a blood sample, you may have noticed that the police officer provided special vials to be used for the sample. These blood collection vials come from a kit that is specifically made for police agencies in Michigan to collect blood samples for criminal investigations. There should be two vials with grey caps. Sodium fluoride should be in the vials to properly preserve the blood. The vials are sent to the Michigan State Police forensics lab in Lansing for testing. Once tested, the results are sent back to the arresting agency, and the prosecutor for that agency.  The prosecutor will review the matter, and if appropriate, will file DUI charges against you in court. If the blood is being tested for alcohol only, the process usually takes three to six weeks. If it’s also being tested for drugs, it could take months. During the coronavirus pandemic, the results could take even longer to be returned.

Supreme Court to Rule: Can Unconscious Driver Consent to Blood Draw?

On January 11th the United States Supreme Court indicated that they would hear a case arising out of the state of Wisconsin involving the constitutionality of a warrantless blood draw from an unconscious person. The name of the case is Mitchell v. Wisconsin and the State Court’s opinion is found at State v. Mitchell, 383 Wis.2d 192, 914 N.W.2d 151, 2018 WI 84 (Sup. Ct. Wisc., 2018).  This state court opinion contains the following facts and analysis; first, the defendant drank to the point of passing out, meaning he was voluntarily rendered unconscious. A roadside breath test suggested that the defendant had a breath alcohol concentration of 0.24.  The blood test came back slightly lower at 0.222. After the Wisconsin Supreme Court upheld the warrantless blood test, the defendant asked the United States Supreme Court (USSC) to hear the case.

In analyzing if the warrantless blood draw from the unconscious person was constitutionally permissible, the Wisconsin Supreme Court reviewed both prior USSC cases of McNeely and Birchfield and focused on the provisions of the state’s implied consent law. The state court found that the search was permissible because the defendant’s self-induced physical condition did not render Wisconsin’s Implied Consent presumption unreasonable under the totality of circumstances.  This was based on four factors: (1) by exercising the privilege of driving on Wisconsin highways, the defendant’s conduct demonstrated consent to provide breath, blood or urine samples if law enforcement had probable cause to believe that he had operated his vehicle while intoxicated, (2) the arresting officer had probable cause to arrest the defendant for driving while intoxicated, (3) the defendant  chose to drink sufficient alcohol to produce unconsciousness, and; (4) by his conduct, the defendant forfeited the statutory opportunity to assert that he had “withdrawn consent” he previously gave. This opinion suggests that had the driver, prior to becoming unconscious, manifested any intent to withdraw his consent, then the outcome would have been different.

By deciding to hear the case, the USSC has signaled their intention to rule on the constitutionality of the Wisconsin decision/law. This is interesting because there is a split of authority on this issue at the State Court level. In fact, Wisconsin is among 29 states that allow warrantless blood draws from persons who are unconscious.  The remaining states have either not ruled on the issue, or do not allow them.

How Does Drinking on an Empty Stomach Effect My Breath or Blood Test Results?

Generally, when a person drinks on an empty stomach they will reach a higher blood alcohol concentration more quickly, and this higher concentration will last longer, then if the same amount of alcohol is consumed on a full stomach.  This is one reason some people get charged with drunk driving even when they think they are drinking responsibly.  They did not realize the little alcohol they had would put them over the legal limit.  Here’s why this is true:

There are three things that impact a person’s blood alcohol concentration.  These are alcohol absorption, distribution and elimination.  Various factors can potentially impact all three of these factors, and possibly increase a person’s breath test. Generally the absorption of alcohol is a function of food in the stomach, distribution is a function of the amount of water present in various tissues in the body and the elimination of alcohol is largely a function of a person’s prior exposure to alcohol.

Ethanol, which is also called “beverage alcohol” or simply “alcohol,” has many interesting traits and characteristics. Because of Ethanol’s unique molecular structure, it will begin to be absorbed into the blood as soon as it comes into contact with tissues in your body.  So, the absorption of alcohol will begin in your mouth.  However, about 80% of the absorption into your bloodstream will take place in the lower intestine. This means that anything that stands in the way of alcohol getting from your stomach into your small intestine will significantly delay absorption. Certain foods, such as those that are high in fats and proteins, require the most time to digest.  While you are digesting, a muscle between your stomach and your small intestine remains closed.  Then, as you’re done digesting, the muscle opens, and the contents of your stomach pass into the small intestine.  This typically happens over time, meaning smaller amounts of alcohol pass into your bloodstream for each unit of time.  Also, as you are drinking alcohol, some elimination takes place in the stomach, and some alcohol is passing into the blood through the stomach tissues and then is eliminated by the liver. This means there’s less alcohol available to pass into the small intestine when the digestion is complete.

Is Michigan Forensic Lab’s Lack of Blind Testing Cause for Concern?

There are about 30,000 drunk driving arrests in Michigan each year, and of these, about 1/3 of them involve blood tests for alcohol or controlled substances.  All of these blood tests are performed at the Michigan State Police forensic lab. And the blood samples all get to the lab the same way – they are sent by the police after an intoxicated driving arrest. This means everyone at the lab, from the lowest clerical staff, to the forensic scientists and lab supervisors, know that if blood is there, it’s because an (alleged) crime has been committed.  This seems to violate one of the most basic scientific protocols – blinded experiments.

A blinded-experiment is one in which information about the test is withheld to reduce or eliminate bias and subjective influence. Bias can be both unintentional or unconscious and for this reason blinded experiments do not suggest or infer dishonesty.  If dishonesty exists, however, blinded experiments are one way to ferret it out.  While blinded experiments are most often used in medical and psychological settings, blinded experiments also help to measure and increase the integrity of researchers and technicians, such as forensic analysists.

While forensic blood testing is not an “experiment” as such, inserting blinds into the system is one way that scientific credibility and objectivity can be maintained.  For this reason, the Houston Texas Forensic Science Center has begun sliding blind testing into the lab’s workload.  A recent article on the subject from forensicmag.com poses this question:

Trump Plan Would Place Lansing Toxicology Lab Under Federal Control

President Trump’s Department of Justice has proposed a new Office of Forensic Science and Forensic Science Board within the DOJ. This new board would have governing authority over all of Michigan’s forensic labs, including the Toxicology lab located in Lansing.  Nearly all drivers arrested for intoxicated driving and subjected to blood draws currently have their blood tested at this Lansing Toxicology lab.  Consequently, this new change could impact more than 10,000 DUI cases each year in Michigan.

The new Department would be headed by a Director, who would be appointed by the President.  The Director would report to the Attorney General. According to subsection b of the proposal, the mission of the new Forensic Science Division would be: to strengthen and promote the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training, and capacity building for the forensic infrastructure.

One of the duties of the Director will be to work to ensure that appropriate accreditation, certification, standards, methods, best practices, and organizations exist for forensic disciplines.

The Michigan State Police have announced that as many as 4,000 alcohol blood tests are flawed due to improper calibration.  This means that as many as 4000 people arrested for drunk driving in Michigan could be wrongly convicted of a crime they did not commit.

Here’s how the system works: if you are arrested in Michigan for drunk driving, and the police draw your blood to test for alcohol, then the blood sample taken will be sent to a Lansing Toxicology Lab for testing.  The Michigan State Police run this lab that is responsible for alcohol and drug blood testing for the majority of arrested intoxicated drivers.

The process used by the lab is called gas chromatography, and this process requires calibration.  If the calibration is flawed, and it often is, then the blood alcohol or drug level reported by the lab is worthless.

Contact Information